9911796707
TMI Blog2018 (7) TMI 1639X X X X Extracts X X X X X X X X Extracts X X X X ..... issues discussed above which has been remitted by the Ld. Pr. CIT has been taken cognizance by the Ld. CIT(A) in the regular appeal preferred by the assessee well before the Ld. CIT issued the SCN conveying his desire to invoke revisional jurisdiction u/s. 263 of the Act, therefore, as per the clause (c) to Explanation (1) of sec. 263 the subject matters of all the three issues was already under appeal before the Ld. CIT(A) and, therefore, the Ld. CIT does not enjoy revisional jurisdiction u/s. 263 to interfere on these issues which is under appeal before the Ld. CIT (A). Therefore, we find merit in the appeal of the assessee and we quash both the impugned orders of the ld. Pr. CIT. Thus, both the appeals of the assessee are allowed. - I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the order is set aside with direction that the AO should pass fresh assessment order after conducting independent, detailed and complete enquiry with regard to assessee s claim for (i) deduction u/s. 80IE, (ii) computation of tax liability u/s. 115JB and (iii) payment of tax u/s. 115O, after allowing due opportunity to the assessee of being heard in the matter. 3. It has been brought to our notice that in this case after the AO had passed the original scrutiny order u/s. 143(3) of the Act dated 24.12.2013, the assessee preferred an appeal before the Ld. CIT(A) who was pleased to pass appellate orders in respect of all the issues raised by the Ld. Pr. CIT in his 263 order by an order dated 20.07.2016. Therefore, according to Ld. AR, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded] to such matters as had not been considered and decided in such appeal. 4. We note that the issues that have been remitted by the Ld. CIT to AO for fresh adjudication are (i) is with regard to deduction u/s. 80IE, (ii) computation of tax liability u/s. 115JB and (iii) payment of tax u/s. 115O which has been decided by the Ld. CIT(A) vide order dated 20.07.2016 for AY 2011-12 as under: 5. In respect of grounds raised by the assessee before the Ld. CIT (A) in respect to deduction u/s. 80IE is as under: 6. For that learned AO was wrong in holding that the AY 2011-12 is 4th year for deduction u/s. 80 IE and not 3rd year as claimed by assessee. 8. While computing total income learned AO has wrongly allowed deductio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see before the Ld. CIT (A) in respect of sec. 115JB which is as under: 9. For that learned AO was wrong in holding that section 115JB is applicable for the year under consideration ignoring that as per return there was no tax payable on total income and as per concurrent orders of CIT (A), ITAT and Calcutta High Court in case of Vishnu Sugar Mills Ltd. and some other judgments which have attained finality, in such circumstances S. 115JB is not applicable. 8. The Ld. CIT (A) decided this issue as under ( ii) 1. I have considered the action of the Ld. AO and the various submissions made by the Ld. AR in the matter of applicability of Sec. 115JB in the case of the appellant-assessee. 2. It is to be aid that the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Jayashree Tea Industries Ltd. (2006) 285 ITR 506 (Cal). 2. the said judgment was also upheld by the Hon ble Apex Court in Civil Appeal 2008 CC 9853/2008 dated in terms of the amounts applicable for the tea company, as under: Now comes the question of Tea Company. The activities of the tea company differ from other commercial sectors. Although all those tea companies are corporate entitles their activities have a distinctive feature. It has a lot of agricultural activities starting from plantation to packing green tea leaves. The constitution makers provided that agriculture income would come within the domain of the state. Hence, the Income-tax Act being the central law was not competent to make the agriculture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay income tax at the prescribed rate on ₹ 40 as well as additional income tax at the prescribed rate on ₹ 20. In view of the above findings, the Ld. AO is directed to impose tax only on 40% of dividend, in accordance with the judgments of the Supreme Court of India approving judgment of Calcutta High Court. 11. Therefore, we find that the aforesaid issues which has been set aside by the Ld. Pr. CIT for fresh adjudication of AO vide impugned order dated 30.03.2017 has already merged with the order of the Ld. CIT(A) so, the Ld. Pr. CIT lacks jurisdiction to interfere with the order on the issues that has already merged with the order of the Ld. CIT(A) dated 20.07.2016. 12. Coming to AY 2012-13. We note that all t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
